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HomeMy WebLinkAbout07-573 MillerKristen E. Miller 140 South Pitt Street Carlisle, PA 17013 Dear Ms. Miller: ADVICE OF COUNSEL August 20, 2007 07 -573 This responds to your letter of July 13, 2007, by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa. .S. § 1101 et seq., would present any restrictions upon employment of the Deputy Secretary for Information Technology following termination of Commonwealth service. Facts: Since June 2003, you have been employed by the Commonwealth of Pennsylvania with the Office for Information Technology ("OIT ") within the Governor's Office of Administration ( "OA "). You currently serve as the Deputy Secretary for Information Technology. You have submitted a copy of an organizational chart for OA, which is incorporated herein by reference. You state that OIT establishes enterprise technology policy and standards and leads enterprise projects that affect all agencies, such as, for example, cyber security implementations, data center services, and telecommunications. OIT oversees a governance process that requires all agencies to submit their planned Information Technology ( "IT ") projects to OIT for review and approval. You state that you do not have sole authority to approve or fund these IT projects; rather, OIT provides information and a funding recommendation to the Office of the Budget, and the Office of the Budget ultimately decides whether an agency will be provided with the requested budget funding. In your current position, you are responsible for reviewing and making recommendations for approval or denial of agency technology - related procurements. You state that review and approval by OIT is but one step in a larger procurement approval process that includes review and approval by the Office of General Services, the Comptroller, and occasionally, the Attorney General's Office. Miller, 07 -573 August 20, 2007 Page 2 You state that beginning in August 2007, Agency Chief Information Officers will be "direct reports" to OIT. The remaining IT organizations will not have a formal reporting relationship to OIT but will continue to report to their respective agencies. You state that over the last year, OIT has been asked to consolidate and provide internal IT services -- including application development, desktop support, network support, project management, and delivery - -for both the Office of the Budget and the Department of General Services. You further state that OIT is currently in the process of consolidating these same IT services of the Governor's Office and the Office of General Counsel into OIT, with completion expected by November 2007. You state that you plan to leave Commonwealth service within the next six months to return to the private sector, most likely to a company that provides IT services. You pose the following questions: 1. In general, whether the Ethics Act would present any restrictions upon your employment following your termination of service as the Deputy Secretary for Information Technology; 2. If you would pursue consulting in the private sector, what contact would you be permitted to have with OA and /or other state agencies, and specifically what restrictions would apply to you under the Ethics Act; and 3. Whether the Ethics Act would permit you to advise businesses on the functions of government and other strategies as long as you would not have direct contact with a "restricted agency or employee." Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of the Ethics Act, 65 Pa.C.S. §§ 1107(10), (11), advisories are issued to the requester based upon the facts that the requester has submitted. In issuing the advisory based upon the facts that the requester has submitted, the Commission does not engage in an independent investigation of the facts, nor does it speculate as to facts that have not been submitted. It is the burden of the requester to truthfully disclose all of the material facts relevant to the inquiry. 65 Pa.C.S. §§ 1107(10), (11). An advisory only affords a defense to the extent the requester has truthfully disclosed all of the material facts. As the Deputy Secretary for Information Technology with OIT within OA, you would be considered a "public official /public employee" and an "executive -level State employee" subject to the Ethics Act and the Regulations of the State Ethics Commission. See, 65 Pa.C.S. § 1102; 51 Pa. Code § 11.1. Consequently, upon termination of Commonwealth service, you would become a former public official /public employee and a former executive -level State employee subject to the restrictions of Section 1103(g) and Section 1103(i) of the Ethics Act. Section 1103(i) restricts former executive -level State employees as follows: § 1103. Restricted activities (i) Former executive -level employee. - -No former executive -level State employee may for a period of two years from the time that he terminates employment with this Commonwealth be employed by, receive compensation from, assist or act in a representative capacity for a business or corporation that he actively participated in recruiting to this Commonwealth or that he actively participated in inducing to Miller, 07 -573 August 20, 2007 Page 3 open a new plant, facility or branch in this Commonwealth or that he actively participated in inducing to expand an existent plant or facility within this Commonwealth, provided that the above prohibition shall be invoked only when the recruitment or inducement is accomplished by a grant or loan of money or a promise of a grant or loan of money from the Commonwealth to the business or corporation recruited or induced to expand. 65 Pa.C.S. § 1103(i). Section 1103(i) restricts the ability of a former executive -level State employee to accept employment or otherwise engage in business relationships following termination of State service, under certain narrow conditions. The restrictions of Section 1103(i) apply even where the business relationship is indirect, such as where the business in question is a client of a new employer, rather than the new employer itself. See, Confidential Opinion, 94 -011. The prohibitions of Section 1103(i) of the Ethics Act would have to be observed when applicable. However, Section 1103(i) of the Ethics Act would not restrict you from being employed by, receiving compensation from, assisting, or acting in a representative capacity for a business or corporation provided and conditioned upon the assumptions that you did not actively participate in recruiting the business or corporation to Pennsylvania, and that you did not actively participate in inducing the business or corporation to open or expand a plant, facility, or branch in Pennsylvania, through a grant or loan of money or a promise of a grant or loan of money from the Commonwealth of Pennsylvania to the business or corporation. Unlike Section 1103(i), Section 1103(g) does not prohibit a former public official /public employee from accepting a position of employment. However, it does restrict the former public official /public employee with regard to "representing" a "person" before the governmental body with which he has been associated ": § 1103. Restricted activities (g) Former official or employee. - -No former public official or public employee shall represent a person, with promised or actual compensation, on any matter before the governmental body with which he has been associated for one year after he leaves that body. 65 Pa.C.S. § 1103(g) (Emphasis added). The terms "represent," "person," and "governmental body with which a public official or public employee is or has been associated" are specifically defined in the Ethics Act as follows: § 1102. Definitions "Represent." To act on behalf of any other person in any activity which includes, but is not limited to, the following: personal appearances, negotiations, lobbying and submitting bid or contract proposals which are signed by or contain the name of a former public official or public employee. "Person." A business, governmental body, individual, corporation, union, association, firm, partnership, committee, club or other organization or group of persons. Miller, 07 -573 August 20, 2007 Page 4 "Governmental body with which a public official or public employee is or has been associated." The governmental body within State government or a political subdivision by which the public official or employee is or has been employed or to which the public official or employee is or has been appointed or elected and subdivisions and offices within that governmental body. 65 Pa. C. S. § 1102. The term "Person" is very broadly defined. It includes, inter alia, corporations and other businesses. It also includes the former public employee himself, Confidential Opinion, 93 -005, as well as a new governmental employer. Ledebur, Opinion 95 -007. The term "representation" is also broadly defined to prohibit acting on behalf of any person in any activity. Examples of prohibited representation include: (1) personal appearances before the former governmental body or bodies; (2) attempts to influence; (3) submission of bid or contract proposals which are signed by or contain the name of the former public official /employee; (4) participating in any matters before the former governmental body as to acting on behalf of a person; and (5) lobbying. Popovich, Opinion 89 -005. Listing one's name as the person who will provide technical assistance on a proposal, document, or bid, if submitted to or reviewed by the former governmental body, constitutes an attempt to influence the former governmental body. Section 1103(g) also generally prohibits the inclusion of the name of a former public official /public employee on invoices submitted by his new employer to the former governmental body, even though the invoices pertain to a contract that existed prior to termination of public service. Shay, Opinion 91 -012. However, if such a pre - existing contract does not involve the unit where the former public employee worked, the name of the former public employee may appear on routine invoices if required by the regulations of the agency to which the billing is being submitted. Abrams/Webster, Opinion 95 -011. A former public official /public employee may assist in the preparation of any documents presented to his former governmental body. However, the former ublic official /public employee may not be identified on documents submitted to the former governmental body. The former public official /public employee may also counsel any person regarding that person's appearance before his former governmental body. Once again, however, the activity in this respect should not be revealed to the former governmental body. The Ethics Act would not prohibit or preclude making general informational inquiries to the former governmental body to secure information which is available to the general public, but this must not be done in an effort to indirectly influence the former governmental body or to otherwise make known to that body the representation of, or work for the new employer. Section 1103(g) only restricts the former public official /public employee with regard to representation before his former governmental body. The former public official /public employee is not restricted as to representation before other agencies or entities. However, the "governmental body with which a public official /public employee is or has been associated" is not limited to the particular subdivision of the agency or other governmental body where the public official /public employee had influence or control but extends to the entire body. See, Legislative Journal of House, 1989 Session, No. 15 at 290, 291; Sirolli, Opinion 90 -006; Sharp, Opinion 90- 009 -R. The governmental body with which you would be deemed to have been associated upon termination of Commonwealth service would be OA in its entirety including, but not limited to, OIT. Therefore, for the first year following termination of Miller, 07 -573 August 20, 2007 Page 5 your Commonwealth service, Section 1103(g) of the Ethics Act would apply and restrict "representation" of "persons" before OA. It is noted that the submitted facts provide that beginning in August 2007, the Agency Chief Information Officers will be `direct reports" to OIT. You also state that over the last year, OIT has been asked to consolidate and provide internal IT services- - including application development, desktop support, network support, project management, and delivery - -for both the Office of the Budget and the Department of General Services. You further state that OIT is currently in the process of consolidating these same IT services of the Governor's Office and the Office of General Counsel into OIT, with completion expected by November 2007. From the submitted facts, it cannot be determined whether OIT is acquiring personnel from, sharing personnel with, or merely providing services to the various aforementioned offices /agencies. You are advised that the Section 1103(g) restrictions would encompass "representation" of "persons" before personnel considered included within OA. Having set forth the restrictions of Section 1103(g) of the Ethics Act, it is noted that your first and second questions have already been addressed above. In response to your third question, you are advised as follows. Following termination of your Commonwealth service, Section 1103(i) of the Ethics Act would not prohibit you from advising a given business on the functions of government and other strategies conditioned upon the assumptions that you did not actively participate in recruiting such business to Pennsylvania, and that you did not actively participate in inducing such business to open or expand a plant, facility, or branch in Pennsylvania, through a grant or loan of money or a promise of a grant or loan of money from the Commonwealth of Pennsylvania to such business. Section 1103(g) of the Ethics Act would not prohibit you from advising businesses on the functions of government and other strategies as long as in so doing, you would not engage in prohibited representation before OA during the first year following termination of Commonwealth service. Based upon the facts that have been submitted, this Advice has addressed the applicability of Section 1103(g) and Section 1103(i) of the Ethics Act only. It is expressly assumed that there has been no use of authority of office for a private pecuniary benefit as prohibited by Section 1103(a) of the Ethics Act. Further, you are advised that Sections 1103(b) and 1103(c) of the Ethics Act provide in part that no person shall offer to a public official /public employee and no public official /public employee shall solicit or accept anything of monetary value based upon the understanding that the vote, official action, or judgment of the public official /public employee would be influenced thereby. Reference is made to these provisions of the law not to imply that there has been or will be any transgression thereof but merely to provide a complete response to the question presented. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act; the applicability of any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Act has not been considered in that they do not involve an interpretation of the Ethics Act. Specifically not addressed herein is the applicability of the Governor's Code of Conduct. Conclusion: As the Deputy Secretary for Information Technology with the Office for Information Technology ("OIT ") within the Governor's Office of Administration "OA "), you would be considered a "public official /public employee" and "executive-level State employee" subject to the Ethics Act and the Regulations of the State Ethics Commission. Upon termination of Commonwealth service, you would become a "former public official /public employee" and "former executive -level State employee" subject to the restrictions of Section 1103(i) and Section 1103(g) of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq. The prohibitions of Section 1103(i) of the Ethics Act set forth above would have to be observed when Miller, 07 -573 August 20, 2007 Page 6 applicable. Under Section 1103(i) of the Ethics Act, you would not be prohibited from being employed by, receiving compensation from, assisting, or acting in a representative capacity for a business or corporation conditioned upon the assumptions that you did not actively participate in recruiting the business or corporation to Pennsylvania, and that you did not actively participate in inducing the business or corporation to open or expand a plant, facility, or branch in Pennsylvania through a grant or loan of money or a promise of a grant or loan of money from the Commonwealth of Pennsylvania to the business or corporation. The restrictions of Section 1103(g) of the Ethics Act as outlined above must be followed. The governmental body with which you would be deemed to have been associated upon termination of Commonwealth service would be OA in its entirety including, but not limited to, OIT. The Section 1103(g) restrictions would encompass "representation" of "persons" before personnel considered included within OA. Act. The propriety of the proposed conduct has only been addressed under the Ethics Further, should service be terminated, as outlined above, the Ethics Act would require that a Statement of Financial Interests be filed by no later than May 1 of the year after termination of service. Pursuant to Section 1107(11), an Advice is a complete defense in any enforcement proceeding initiated by the Commission, and evidence of good faith conduct in any other civil or criminal proceeding, provided the requester has disclosed truthfully all the material facts and committed the acts complained of in reliance on the Advice given. This letter is a public record and will be made available as such. Finally, if you disagree with this Advice or if you have any reason to challenge same, you may appeal the Advice to the full Commission. A personal appearance before the Commission will be scheduled and a formal Opinion will be issued by the Commission. Any such appeal must be in writing and must be actually received at the Commission within thirty (30) days of the date of this Advice pursuant to 51 Pa. Code § 13.2(h). The appeal may be received at the Commission by hand delivery, United States mail, delivery service, or by FAX transmission (717 - 787 - 0806). Failure to file such an appeal at the Commission within thirty (30) days may result in the dismissal of the appeal. Sincerely, Robin M. Hittie Chief Counsel